New DMCA ruling: jailbreaking of smartphones legal starting 2013, but not for tablets

Law and policy can be confusing things, especially when you consider the dichotomy between the spirit of the law and the letter of the law. While the 1998 Digital Millenium Copyright Act (DMCA) aimed to curb copyright infringement and policy, an interesting backlash is that legal circumvention constituting fair use has become limited.

To clarify fair use principles, the Librarian of Congress grants exemptions on these issues, which are valid for three years. For instance, in 2010 the Librarian allowed read-aloud functionality for e-books for access by the disabled if there are no alternative means for access by the blind.

For the 2013 to 2015 period, though, the Librarian has issued a somewhat confusing policy, which will affect smartphone and tablet owners. Ars Technica has quite a technical and policy-oriented discussion on the matter, which pertains to jailbreaking (or rooting, in the case of Android devices), network-unlocking and content ripping. You can check out the source link for the discussion, but for the impatient, here’s a summary.

Jailbreaking/rooting. Starting January 2013, you can legally jailbreak or root your smartphone, which may include the iPhone or any Android phone. This was the same case as in the 2010 rules. However, this time, the ruling is explicit that the jailbreaking is only legal for “the sole purpose of enabling interoperability of [lawfully obtained] applications with computer programs on the telephone handset.”

Meanwhile, tablets are a different thing altogether. The Librarian of Congress says that “the record lacked a sufficient basis to develop an appropriate definition for the ‘tablet’ category of devices, a necessary predicate to extending the exemption beyond smartphones.” The worry here is that other tablet-like devices may be defined as a tablet, and therefore enjoy the same DRM circumventions. These may include laptops, e-book readers, and even handheld videogame devices.

In short: you can legally root your smartphone but not your tablet.

Phone unlocking. In the 2006-2009 and 2010-2012 periods, the Librarian permitted the unlocking of phones with the purpose of switching to another carrier. Starting 2013, this will come with a provision. Users can only arbitrarily unlock phones purchased before January 2013. Phones bought after that date will require the original carrier’s permission before you can legally unlock these.

This change in ruling came from the Librarian’s view that software is not actually owned by the user upon purchase, but you are only granted rights and licenses under the EULA. As such, unlocking a phone (which is essentially software in nature) without the consent of the original carrier is no longer in fair use.

Content ripping. Another interesting point of contention for smartphone and tablet owners is the concept called “space shifting.” There’s always the question of whether it’s legal to rip a DVD for viewing on your smartphone or tablet. According to the Librarian, it will be legal for video content to be ripped only for the following: noncommercial videos, documentaries, non-fiction multimedia e-books offering film analysis, and educational purposes in film studies by students.

Another exemption is for disabled access, meaning ripping content into a medium that can render the content in a way accessible to the blind or deaf.

The Librarian does not allow space-shifting — or ripping so you can watch a DVD video on another device. However, there is a big caveat here. The Librarian says there is no court that has proved this is covered within fair use.

However — and this is a big “however” — a fair use ruling can only be ruled by a court of law. But the courts of law would usually only view an act as within fair use if there is an exemption. So there is a circularity involved, and by default, ripping is illegal.

In short: this implies that anyone who has copied a CD or DVD into a portable media player has already infringed on the publisher’s copyrights.